Individual Case (CAS) - Discussion: 1992, Publication: 79th ILC session (1992)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Ecuador (Ratification: 1967)

The Government has communicated the following information:

With regard to the observations of the Committee of Experts, the Government emphasises that the amendments in the Labour Code which were introduced by Act No. 133 were the result of important discussions and debates at the national level. The Act in question updates the Labour Code of 1938 and responds to the needs of contemporary economic and commercial reality without losing sight of the intangibility of the guarantees on labour matters contained in international Conventions.

Act No. 133 constitutes important progress in the protection of workers' interests. In order to approach professional relations more seriously and to guarantee a right of appeal to workers to claim their rights in the event of a loss of their source of income, the Act also introduces in the legislation two new bases for a strike (section 63(6) and (7)), and it increases the fines imposed in general on employers when they violate the provisions of the law which protects workers.

The opinions expressed during previous meetings with representatives of chambers of commerce and with workers' organisations were taken into consideration during the drawing up of reforms of the legislation.

Within the National Assembly, the Commission for Labour and Social Affairs is responsible for initiating the constitutional procedure provided for reform drafts which are proposed by the executive as well as for the propositions made to this organ by the United Workers' Front and the Ecuadorian Confederation of Class Organisations.

The goal of the reforms is to establish a balanced and equitable instrument to regulate professional relations to the extent that these reforms aim to correct defective procedures, make the exercise of the right of appeal quick and flexible, and improve the degree of individual protection of workers.

The increase in the minimum number of workers necessary to form trade unions (sections 53 and 55 of Act No. 133)

The Government is of the view that the exercise of the right to form trade unions is not hampered by sections 53 and 55 of Act No. 133 which increases the minimum number of workers to form trade unions. Indeed, the first paragraph of Article 8 of Convention No. 87 stipulates that in exercising the rights provided for in the Convention workers shall respect the law of the land. Consequently, this international instrument confers on each country the authority to determine, in the light of national realities, the necessary number of workers. It is precisely the economic, productive and social realities prevailing in Ecuador that have made it necessary to revise the minimum number of workers needed to form trade unions; the old rule was adopted in 1938, at a time when the industrial and professional development was still entirely in its initial stage. Today, the country is undergoing a process of economic, industrial and customs union at the regional and subregional levels. As of 30 April 1992, 41 workers' organisations had been established in virtue of Act No. 133. It is equally important to underline that the legislator has paid particular attention to the protection of acquired rights and to the legal personality of organisations established prior to the entry into force of the said Act. To this end, a transitional provision has been incorporated into the Act.

The decision of the Minister of Labour concerning minimum services in the event of a strike (section 69 of Act No. 133)

The legislator is of the view that the Government has the fundamental obligation to look after the functioning of minimum services in the event of a strike in institutions which provide services which are essential to the social or public interest. This is not a rule which applies generally, but rather is a provision of an exceptional nature, which is applicable to institutions which provide essential services in the social or public interest. Within this narrow scope of application, the provision in question applies only in case of a disagreement between the parties. It should be pointed out as an antecedent that since 1991 the country has suffered terribly from the effects of a serious cholera epidemic. Due to this fact, it was indispensable that hospital and health services, particularly those situated in rural zones lacking in sanitary facilities, continue to function. However, in these circumstances, national and regional strikes were called by workers in the health sector which completely paralysed the medical services. This situation not only led to the death of persons affected by cholera because they had not received the necessary medical care but also put parts of the population deprived of this essential public service in great danger. Any society, and especially one which is on the brink of poverty, has without any doubt a fundamental obligation to maintain the right of its citizens to life and to health. Confronted with this reality, the Government was obliged to adopt, without however hampering the right to strike or other actions with similar claims, adequate measures in order to ensure a minimum guarantee for the running of essential services. These measures apply once the period of time provided for in the law has run out and the parties are still not able to agree on the maintenance of these services.

Drafts of amendments to labour legislation

In the context of the commitment made by the Government towards the International Labour Organisation, the Minister of Labour took many steps within the National Assembly to include in the reforms drawn up by this organ in labour matters, the examination of draft modifications and of legislative interpretations of provisions which were the object of observations by the Committee of Experts. In the light of this commitment and considering that it is in the interest of the Government to regularise the application of ratified international Conventions, the Minister of Labour, in his communication No. DM-900116 of 18 April 1991, asked the President of the Assembly to initiate the constitutional procedure regarding the draft legislation which was submitted to this legislative body on 22 May 1990. Following this, in a communication No. AIT-91102 of 19 July 1991, the Ministry of Labour asked the Vice-President of the Commission for Labour and Social Affairs of the Assembly to proceed in the examination of reforms of the Labour Code. Finally, in a communication No. AIT-91117 of 12 August 1991, the Minister of Labour himself addressed the Vice-President of the said Commission and immediately asked it to advance in the examination and the adoption of the legislative reforms introduced on 22 May 1990. Under these conditions, the Government reiterates its intention to continue asking the competent authorities of the National Assembly to examine and approve the draft legislation, the end result of which will be determined by this legislative organ.

The Government has enclosed a copy of the communications mentioned in its report.

In addition, a Government representative, the Minister of Labour and Human Resources, supplied information on the efforts made by his Government to revise the country's labour legislation. Recalling that, in November 1989, at the request of President Dr. Rodrigo Borja, the ILO had undertaken a consultative mission to Ecuador to examine, among others, issues relating to the application of the Convention; draft legislation which took into account the suggestion made by the ILO mission had been presented to Congress. As of this time the draft legislation had not been adopted into law. Noting that communications had been sent to the President of Congress in April 1991 and the President of the Labour Law Committee in July 1991, he regretted that in spite of the close relations of these persons with trade union activists, no action had been taken on the draft legislation, leaving unresolved certain questions of application raised by the Committee of Experts. The speaker invited the Workers' members of his country to join with the Government in its efforts to adopt the draft legislation before the closing of the present legislative session in August 1992. As concerned the specific points raised by the Committee of Experts in its observation on the problems in applying Act No. 133 of 1991 to reform the Labour Code, in relation to the Convention, the speaker referred to the context of this reform. The reform had been made after a significant period of consultation with workers' and employers' organisations, consultations which had never taken place before in the history of constitutional democracy in Ecuador. Act No. 133 brought many improvements for workers; unfortunately, the Committee of Experts' observations took up only two points. Act No. 133 did not violate the explicit provisions of the Convention. The Convention did not stipulate a permissible minimum number of persons for establishing a workers' organisation, a level suggested to be between 20 and 30 workers. Changes in economic and social conditions of his country had obliged an amendment of the Labour Code of 1938, increasing the required minimum of 15 workers to 30. The speaker recalled the comments recently made by the President of the Republic of Zambia to the Conference that efforts should be made to ensure that legislation does not hamper business activity, as well as the offer of the Director-General of the ILO to provide technical assistance to countries seeking to make labour legislation more flexible in the light of new social and economic conditions. The Government had introduced elements of flexibility in its labour legislation and was going to examine the practical results of Act No. 133; in the six months it had been in force, 41 workers' organisations had been registered and the frequency of labour disputes had dropped. As concerns the decision of the Ministry of Labour, in the event of disagreement between the parties, on the level of minimum services to be maintained in the event of a strike in services that are considered to be essential - referred to by the Committee of Experts in its observation - the speaker expressed the view that strikes in essential services, particularly hospitals, had produced desperate situations for local populations. The regulation of strikes had to be considered in a broad social context, both by governments as well as by trade unions. In any case, under Act No. 133, the number of cases in which a strike could be called had been extended. In conclusion, he emphasised the need to revise the labour legislation in such a way as to meet the principal preoccupation of government: unemployment and underemployment. As unemployment had been a priority issue for government, measures had to be taken to encourage creation of enterprises.

The Workers' members were deeply disappointed that the Government did not take advantage of the opportunity offered by the adoption of Act No. 133 in order to put its legislation in conformity with the Convention as well as to implement the points contained in the comments of the Committee of Experts over the last several years. This was all the more so because of the fact that this case had been previously discussed on several occasions, that two ILO missions had visited Ecuador (1986-89) during which the Government had taken on certain undertakings, and that special paragraphs were included in the Committee's reports to the Conference in 1988 and 1989. Despite the fact that the Committee of Experts made, at least on one occasion, a positive comment about Act No. 133 (an increase in the number of justifications for going on strike) they considered this Act raised previously non-existing problems. In conclusion, they noted that unfortunately nothing had changed regarding the serious violations raised for a number of years by the Committee of Experts. Act No. 133 could very well be a ploy on the part of the Government to avoid making basic changes in the Labour Code by amending only certain articles and thus claiming to fulfil the requests of this Committee. The Government had stated, however, that the basic changes requested by the Committee of Experts had only been submitted to the National Congress by one of its members. It seemed to them, therefore, that the fate of the trade union movement had become the task of an individual member of Congress and regretted to note the decline in the State's responsibilities in this area. They considered, therefore, that the serious problems of the application of the Convention remain unchanged: the prohibition placed on public servants from setting up trade unions, the intolerable interference by the Government in the internal administration of trade unions as well as on matters touching on the very existence of the trade union movement, the Government's negative attitude about freedom of association and the dynamic role that trade unionism could play in the economy and in the development of the country, the increase of the minimum number of workers required for the establishment of trade union associations. In fact the Convention does not specify any such number and it was evident that the increase in the minimum number required tended to diminish, in reality, the possibilities of workers to create trade union organisations as well as their power to defend their interest. The Workers' members strongly urged the Government to be more active in ending, as soon as possible, the long-standing problems raised and thus fully implement in practice the provisions of the Convention.

The Employers' members referred to the three points raised by the Committee of Experts regarding Act No. 133. They did not wish to make further comment on the extension of the number of cases in which a strike can be called, as this aspect of the Act had not been criticised by the Committee of Experts. They recalled, however, that the Experts considered problems could arise regarding the other two aspects of the Act (the increase in the minimum number of workers required for the establishment of trade union associations and the decision by the Ministry of Labour, in the event of disagreement between the parties, on the minimum services to be maintained in the event of a strike). Apparently the Experts were not sure on this point and the Workers' members expressed the same doubts as well. Although a good number of countries did require a minimum number of workers for the establishment of trade unions, the Employers were of the view that it was not necessary to fix such a minimum number. As the Convention was silent on this question they felt that it should be the practice in reality that should resolve the question. The Experts considered the minimum number established in the Ecuadorian legislation (the figure was increased from 15 to 30) to be a dubious one. The Employers' members did not wish to pursue this point because, as already stated, they felt it was the practice in reality that should provide solutions. As regards the decisions made by the Ministry of Labour, in the event of disagreement between the parties on the minimum services to be maintained in the event of a strike, the Employers' members considered that it was necessary to maintain emergency services. A decision should rapidly be made in the event that the parties failed to agree on the definition of such services. In their opinion, this decision should be made by the employer and that such decision could successfully withstand legal challenges. They considered medical services to be part of essential services that should not be interrupted and for which the minimum requirements should be clearly established. The Experts required other changes regarding the five points discussed previously by the Conference Committee. The Employers' members considered these points to have varying degrees of importance. With regard to the penalties for strikes they assumed this referred to illegal strikes. In view of the fact that this Committee was not aware of the clear definition of an illegal strike in the country, they felt this question should be left pending for the time being. With regard to the administrative dissolution of a works council when its membership drops below 25 per cent of the total number of workers, they considered that the Convention did not contain specific provisions on this point. In such a case they considered that the general principle that, on such matters, freedom, understood in the widest sense possible, should apply and that practice in reality should resolve the details of its application. The other points, namely, the prohibition placed on public servants from setting up trade unions, the requirement that members of the executive committees of a works council be Ecuadorian, as well as the prohibition placed on unions from taking part in religious or political activities, were, in their view, unjustified interferences in the exercise of freedom of association. With regard to the four drafts presented to the National Congress by one of its members referred to in the report of the Committee of Experts, the Employers' members requested the Government's representative to provide information on the content of these amendments as well as on the prospects for their adoption. Considering that it was up to the Government, in the end, to take appropriate measures regarding the criticisms made, they requested for all useful information in this respect.

A Workers' member of the United States, on behalf of the Workers' members, regretted the fact that this was a long-standing problem in need of remedial action. He was all the more concerned because of the absence of information from the Government representative on the results of the 1986 direct contacts mission. Six years after this mission, the situation remained unchanged. The exasperation of the Workers finally led the Workers to insist on, and obtain, a lengthy special paragraph in the report on the question. He requested the Government representative to indicate to this Committee which recommendations of the direct contacts mission received follow up in order to initiate the badly needed reforms and which ones did not, and the reasons for such failure.

The Workers' member of Ecuador deplored the fact that the changes to the Labour Code introduced by Act No. 133 of 1991 signified a step backwards of 50 years in the area of freedom of association, collective bargaining and the right to strike and that the Government had taken no measures to go ahead with the adoption in Parliament of the draft legislation prepared with the ILO's technical assistance and which concerned four of the points raised by the Committee of Experts for many years. Regarding the establishment of trade unions and, specifically, the increase of the minimum number of workers (from 15 to 30) included in Act No. 133, the Government had justified this provision in the press by stating that it was aimed at increasing employment, and that if trade unions were to be restricted to enterprises with more than 30 workers, more small enterprises would be created. This was a violation of the Convention, especially when account was taken of the fact that most undertakings in Ecuador did not have the above-mentioned minimum legal number of employees. In addition, attainment of this minimum number might be easily frustrated, lost by the dismissal of members, since all that was needed for dismissal was the simple payment of compensation. In addition, the creation of trade unions faced obstacles in the Ministry of Labour which, in many cases and repeatedly, returned the trade union constitutions without having registered them because of minor problems with formalities such as the omission of a word, full stop or comma, thus violating the legislation. In relation to the prohibition on public servants from setting up trade unions, the President of the Republic had stated in the press that unionism in the public sector was the shortest road to the dissolution of the State; this concept inspired the Government's policy on trade unionism. Public servants could also not bargain collectively or sign collective agreements. In addition, section 73 of the Armed Forces Act denied civilian employees in undertakings attached to the armed forces the right to form trade union organisations. He also criticised the regulation of minimum services to be provided in the event of a strike in essential services as set out in Act No. 133. The range of public and private activities which do not correspond to "essential services": minimum services must be maintained with at least 20 per cent of the workers and, when the parties did not agree on the number of workers required to guarantee that service, the Ministry of Labour decided the matter. This was the case in the public sector as well, where the State was both judge and petitioner. If the workers did not accept the minimum service decided by the Ministry, they could be dismissed and new workers could be recruited, including those subject to civil liability. He criticised the provisions of Act No. 133 concerning the need to establish a sole central committee representing 50 per cent of the workers in a company, undertaking or industry of the public sector so as to be able to bargain collectively. Such a committee in fact replaced unions and disappeared once a collective agreement was signed, thus making any follow-up on the agreement impossible. Moreover, the required percentage of 50 per cent for negotiation could be very difficult to attain. In concluding, he recalled that the case had been discussed for many years and supported the Committee of Experts' observations; he hoped that the Committee of Experts would examine the points to which he had referred.

The Employers' member of Ecuador stated that the intervention of the Workers' member of Ecuador was highly exaggerated and gave a picture which did not correspond at all to the situation existing in the country. He deplored the fact that the trade union organisations had not wanted to take part in the first stage of the work on revision of the Labour Code and had participated in an unsatisfactory manner in the subsequent phase. He regretted that the questions were being interpreted out of context and that there had been no mention of the labour victories gained through Act No. 133: increase in compensation for unjustified dismissal; possibility for unions to intervene as parties in judicial proceedings where the State had lodged a petition against an undertaking; possibility to exercise the right to strike during collective bargaining; creation of a tripartite minimum wages council; abolition of the low level of protection against dismissal for workers having permanent contracts. As for the right to unionise in the public sector, a restrictive standard did exist, but only in theory - and statements of the President of the Republic had explained this - because most public servants in Ecuador had enjoyed this right since the revision of section 125 of the Constitution in 1978. Trade unions existed in municipalities, in the petroleum sector, in the electricity sector, etc., and for this reason Act No. 133 regulated the minimum services to be maintained in the case of a strike. This was because, in such essential services, the community had a more valuable interest than that which trade union leaders wished to impose - although it was also valuable - and the country could not for that reason be at their mercy. The increase in the minimum number of workers for the establishment of a trade union contained an implicit reference to informality in a context where undertakings faced many restrictions. A choice had had to be made between rigid legislation and a flexible, sensible and prudent legality in which all factors were present. Finally, he indicated that the minimum services to be maintained in the case of a strike met the requirements of equality in labour relations and in the exercise of the rights of all parties. Trade union organisations had on many occasions signed clauses concerning minimum services.

A Workers' member of France noted that statements made by the Employers' member of Ecuador would make one believe that the situation was satisfactory and the serious criticisms made by the Experts in their report should be overlooked. The statement did not include new points that would eliminate the need to amend the provisions prohibiting civil servants to form unions and the impediments on freedom of association. In addition the efforts made by an Employers' member to convince this Committee that it would be possible to put Ecuador in the hands of workers, despite the numerous obstacles contained in the laws, was beyond him. Taking into account the need to insist upon the changes requested by the Committee of Experts he expressed his expectation that the Government would do everything possible to change the laws along the lines suggested by the Committee of Experts and that the Ecuadorian employers would in future respect not only the laws but the workers in the country.

The Workers' member of Ecuador stated that the trade union organisations had sent their suggestions in writing to the Government concerning the reform of the Labour Code and that the Government had not retained them. Given the differences of opinion between the members of this Committee, he asked that an ILO mission visit Ecuador so as to obtain information on the application of the Convention.

A Workers' member of Colombia deplored the fact that the Employers' member of Ecuador considered the informal economy as the panacea of Latin America and sought justification for the disappearance of the trade union movement. The problems proposed by the savage capitalist model had to be looked at jointly in Latin America. Since there had been no reply given to the points raised by the Workers' member of Ecuador, the Committee of Experts would have to examine them next year.

A Workers' member of Pakistan pointed out that the right to organise, recognised in the Convention, was equally pertinent to workers and employers. He appealed to the Employers to show concern in this case even if it only involved the right of workers to organise because the power of the Government to dissolve such organisations could be also applicable to them. In his view, trade unions always put their communities' interests ahead of their own. He expressed the hope that the national legislation in Ecuador would soon be put into full conformity with the requirements of the Convention.

The Workers' member of the United Kingdom, on behalf of the Workers' members, expressed his doubts about the reassurances given by the Government representative that his Government did not wish to restrict the right of workers to organise. Workers in public enterprises such as electrical and oil companies were granted certain rights while employees of the state administration were still deprived of their right to organise. He was particularly concerned about civil servants in Ecuador who were denied the right to organise under the law of that country. The Convention clearly recognised their rights in this respect: he referred to the countless examples of civil service unions throughout the world. If civil service unions had not existed a number of leading members on the Workers' bench on the Committee would not have appeared and taken part in the work of the Committee. They recognised the right to strike had in recent years been queried by some employers as not being integral to the Convention but this Committee and the Committee of Experts had reaffirmed this right. Unless the Government representative could offer clarifications on the concerns addressed by this Committee and unless the Government could assure the Committee that his country will soon be in full conformity with this Convention they would be urging that this Committee re-examine the case next year. In the event that no progress is reported next year, they would be requesting that the matter be dealt with in a special paragraph in the Committee's report.

The Government representative regretted the attitude of certain Workers' members and, in particular, of the Workers' member of Ecuador whose tergiversation prevented any advance and had repercussions on the internal politics of the country. An example of this tergiversation was that Act No. 133 implied a step backwards of 50 years because it allegedly removed all the labour victories contained in existing law. He recalled in this respect that the trade union organisations had at the outset rejected participation in the process for reform of the Code and that, despite this, he had met with the trade union leaders - including the Workers' member of Ecuador - and managed to arrive at an agreement which settled eight or ten basic questions. It also had to be pointed out that under the present system 400 new trade union organisations had been established. He stated that he was willing to defend, together with the parties who so wished, the revision drafts which had been prepared with ILO assistance. He read them out to the Committee. He also recalled that the Member of Parliament who introduced these drafts in Parliament had done so at the request of the Government. Finally, he pointed out that the trade union organisations were involved in the noble fight for better conditions, but should not lose sight of the circumstances necessary for efficiency in public and private enterprises.

The Employers' members considered that this dialogue was necessary in view of the fact that the last time the Government spoke to this Committee was three years ago. The discussions, in their view, went beyond the points contained in the report of the Committee of Experts and they thought it was not appropriate to go into the details. Both the report of the Committee of Experts and the statement of the Minister referred to the positive changes made but they thought other changes were still needed. The Employers' members hoped that the Government would be able, as soon as possible, to provide this Committee and the Committee of Experts with a detailed written report in this respect. They urged that the Committee's conclusions concentrate on the large areas of agreement between the Workers and Employers regarding these suggestions.

The Committee noted the information supplied by the Government but recalled that the subject-matter had been discussed a number of times before and that its conclusions have been mentioned in special paragraphs of its reports. It found small signs of progress in the Bill to amend the labour legislation pending before Parliament. It asked the Government to take appropriate measures to bring its labour legislation into full conformity with international standards and to ensure implementation in the very near future, taking into account the great importance attached by this Committee to freedom of association. It urged the Government to send the relevant documents to the ILO as soon as possible and it decided to examine the case at its next session and hoped to note with satisfaction measures taken in this respect.